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Patrick, Esq., Lawyer

Category: California Employment Law

Satisfied Customers: 11289

Experience: Significant experience in all areas of employment law.

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I have an employee who I want to fire for gross misconduct.

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I have an employee who I want to fire for gross misconduct. He has been employed 9 months. He has a well known record of verbal abuse and profanity within the company toward other employees and occasionally customers. Recently he has not been showing up to work until 1-2 hours late and often leaves early. This happens when he is supposed to open or close the store. My question is can I terminate him for these reasons and will I be responsible for paying for his unemployment? This is in California. Thank you!

Hello and thank you for entrusting me to answer your question. I am very sorry to hear that you have an employee who is causing difficulties for you at work.

In regard to your ability to terminate a problem employee, you should know that employment in the state of California is presumed to be "at will" absent an agreement guaranteeing employment for a specified period of time. More specifically, California Labor Code Section 2922 provides that: "employment, having no specified term, may be terminated at the will of either party on notice to the other."

What this means is that an employer is free to terminate an employee for any reason whatsoever, even a reason that is entirely unfair, unless the underlying motivation is discriminatory or otherwise in violation of California law.

Thus, absent a contract guaranteeing employment for a specified term, an employer in your circumstance would be absolutely free to let an employee go for the misconduct you have described.

Whether such employee would be entitled to collect unemployment is a separate issue. In general, an applicant for UE benefits must prove that he or she has become unemployed "through no fault of their own." Termination for certain kinds of misconduct qualifies as "fault" and thus makes an otherwise eligible applicant ineligible.

An employee who disobeys orders and/or uses profanity in the work place, especially after being warned for such conduct, will typically be regarded as unemployed "through fault of his own," and thus will be barred from collecting benefits. Please note, however, that the EDD makes these determinations on a case by case basis so it is impossible to predict exactly how the EDD will rule in a given instance.

The above noted, if an employer can present proof in the form of documented warnings or testimony from other employees that the employee in question disobeyed orders or otherwise conducted themselves in an unprofessional manner, the EDD will likely deny benefits.

I sincerely XXXXX XXXXX this information helps you and I wish you the best.

My greatest concern is that you are satisfied with the answer I provide, so please do not hesitate to contact me with follow-up questions. Although I cannot always provide good news, I hope that my answer gives you a better understanding of the law and your rights so that you can obtain the best possible result under the circumstances. Also, please bear in mind that experts are not credited for unaccepted answers, so I greatly appreciate you taking the time to "accept" my answer and leave positive feedback.

Finally, none of the above constitutes legal advice nor is any attorney client relationship created between us.

Patrick, Esq. and other California Employment Law Specialists are ready to help you